Chamorro v. Puerto Rican Cars, Inc.

United States Court of Appeals
For the First Circuit

No. 01-2752

JOSE A. BATIZ CHAMORRO,

Plaintiff, Appellant,

v.

PUERTO RICAN CARS, INC., D/B/A THE HERTZ CORPORATION,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before

Selya, Circuit Judge,

Coffin and Cyr, Senior Circuit Judges.

Jorge Martínez Luciano, and Law Offices of Pedro Ortiz
Alvarez, PSC on brief for appellant.
Pedro J. Manzano-Yates, Luis F. Colón-Conde, and Fiddler
Gonzalez & Rodriguez, LLP on brief for appellee.

August 27, 2002
 SELYA, Circuit Judge. On October 8, 1999, plaintiff-

appellant José A. Batiz Chamorro (Batiz) invoked federal question

jurisdiction, 28 U.S.C. § 1331, and brought an employment

discrimination action in the United States District Court for the

District of Puerto Rico against defendant-appellee Puerto Rican

Cars, Inc., d/b/a The Hertz Corporation (Hertz). Given the

posture of this appeal, the details of the underlying dispute

between Batiz and Hertz need not concern us. What matters is that

a little over two years after suit had been started, the district

court dismissed the case with prejudice for want of prosecution and

failure to comply with the court's orders. Batiz appeals. We

affirm.

The travel of the case is illuminating. After receiving

an extension, Hertz filed its answer on December 28, 1999. In

February of 2000, Batiz initiated a request for production of

documents. See Fed. R. Civ. P. 34. The parties exchanged some

desultory communications about this request, but could not achieve

consensus. In an attempt to bring matters to a head, Hertz moved

for a protective order on grounds that the document request

intruded upon time-barred periods and sought irrelevant materials.

Batiz did not oppose this motion, and only a few uncontroversial

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documents were produced.1 Batiz made no further efforts at

discovery, and the case stalled.

On October 25, 2000, the district court noted Batiz's

apparent lack of interest in pressing forward and ordered him to

show cause why the action should not be dismissed for want of

prosecution. Batiz received an extension of time within which to

reply and thereafter filed a response in which he (1) explained

what steps he had taken to prosecute the action, (2) pledged "to

avoid further delays," and (3) beseeched the court for an

"opportunity to continue" the pursuit of his claims. The district

court did not press the show-cause order, but, rather, scheduled a

status conference for December 15, 2000, at which time the parties

were instructed to inform the court no later than February 28,

2001, about how they intended to proceed with the diligent

prosecution of the action. Batiz ignored this order. Hertz

complied with it, listing various depositions that had been taken

following the status conference, describing the parties' informal

agreement to stay further discovery until April 17, 2001, and

limning its future plans (including its intention to move for

summary judgment).

Between May and September of 2001, the parties engaged in

limited discovery (e.g., Hertz unsuccessfully requested the

1
A magistrate judge eventually granted the unopposed motion on
December 5, 2000.

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production of documents and deposition transcripts, and Batiz

eventually made a second request for production of documents).

These maneuverings generated no docket activity. Apparently

dismayed both by the lack of activity and by Batiz's failure to

file the mandated progress report, the district court invoked Rule

41(b) of the Federal Rules of Civil Procedure2 and dismissed the

case with prejudice by order dated October 18, 2001. The clerk

entered the order on the docket on October 23, and Batiz filed a

timely motion to alter or amend. See Fed. R. Civ. P. 59(e). Hertz

opposed the motion. On November 5, the district court summarily

denied reconsideration. This appeal ensued.

Before we can address the merits of the appeal, we first

must dispel a procedural miasma created by poor draftsmanship. As

a general rule, a notice of appeal must specify the orders and

judgments that the appellant intends to contest. See Fed. R. App.

P. 3(c)(1)(C). The notice of appeal in this case targets only the

order denying reconsideration (to the exclusion of the order

dismissing the action). This raises the question of whether the

notice, as drafted, confers jurisdiction upon this court to review

the original order of dismissal.

Hertz's position — that Batiz has forfeited any right to

have this court review the district court's original decision – is

2
In pertinent part, this rule authorizes a district court to
dismiss an action "for failure of the plaintiff to prosecute or to
comply with . . . any order of the court." Fed. R. Civ. P. 41(b).

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not entirely without force. The pendency of a timely Rule 59(e)

motion tolls the running of the appeal period from the original

judgment. See Fed. R. App. P. 4(a)(4); Fed. R. Civ. P. 59(e).

Nevertheless, an appeal from an order denying such a motion is

generally not considered to be an appeal from the underlying

judgment. Mariani-Giron v. Acevedo-Ruiz, 945 F.2d 1, 3 (1st Cir.

1991).

The holding in Mariani-Giron does not mean, however, that

an appellate court invariably is bound to read the notice of appeal

literally. Such formalism is not obligatory; instead, our

precedents encourage us to construe notices of appeal liberally and

examine them in the context of the record as a whole. See e.g.,

Kotler v. Am. Tobacco Co., 981 F.2d 7, 11 (1st Cir. 1992). That

function proceeds with a recognition that the core purpose of a

notice of appeal is to "facilitate a proper decision on the

merits." Foman v. Davis, 371 U.S. 178, 182 (1962). In light of

these principles, it is not surprising that courts faced with

poorly drafted notices of appeal occasionally have been known to

rescue the technically defaulted portion of an appeal. E.g., Town

of Norwood v. New Eng. Power Co., 202 F.3d 408, 415 (1st Cir.

2000). We caution, however, that such rescue missions are not

automatic, and litigants will do well to draft notices of appeal

with care.

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 Against this backdrop, we inspect Batiz's notice of

appeal. Notwithstanding its focus on the order denying

reconsideration, the text of the notice mentions the original

judgment and notes that "[s]aid Judgment dismissed the . . . action

on the ground[] of want of prosecution." Read in context, this

reference is consistent with a desire to have this court review the

propriety of the original dismissal for want of prosecution. The

fact that Batiz, in his appellate briefs, presents exactly the same

arguments as to the original order of dismissal and as to the

denial of his subsequent motion for reconsideration provides

further justification for ascribing to him an intent to seek review

of both orders. See Town of Norwood, 202 F.3d at 415. Finally,

both sides have fully briefed the merits, and undertaking appellate

review of the original order of dismissal would not unfairly

prejudice Hertz. Cf. Kelly v. United States, 789 F.2d 94, 96 n.3

(1st Cir. 1986) (explaining that an appellee who is not misled by

a misstatement in a notice of appeal is, by definition, not

prejudiced by it). We conclude, therefore, that the notice of

appeal, while carelessly drafted, provides a sufficient foundation

for the exercise of appellate jurisdiction over the original order

of dismissal. See Foman, 371 U.S. at 181-82; In re San Juan Dupont

Plaza Hotel Fire Litig., 45 F.3d 564, 567 (1st Cir. 1995); LeBlanc

v. Great Am. Ins. Co., 6 F.3d 836, 839-40 (1st Cir. 1993).

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 Having resolved the jurisdictional question, we turn to

the two disputed orders. We begin our analysis with bedrock: the

effective administration of justice requires that trial courts

possess the capability to manage their own affairs. Chambers v.

NASCO, Inc., 501 U.S. 32, 43 (1991). The authority to order

dismissal in appropriate cases is a necessary component of that

capability. See Link v. Wabash R.R. Co., 370 U.S. 626, 630-31

(1962). Moreover, the inherent power of trial courts to dismiss

cases for want of prosecution or disregard of judicial orders is

reinforced and augmented by Rule 41(b). See id.; HMG Prop.

Investors, Inc. v. Parque Indus. Rio Canas, Inc., 847 F.2d 908, 916

(1st Cir. 1988).

It is self-evident that "courts cannot function if

litigants may, with impunity, disobey lawful orders." HMG Prop.

Investors, 847 F.2d at 916. For that reason, courts must be given

considerable leeway in exercising their admitted authority to

punish laggardly or noncompliant litigants. It follows logically

that "the trier's determination to dismiss a case for such reasons

should be reviewed only for abuse of discretion." Aoude v. Mobil

Oil Corp., 892 F.2d 1115, 1117 (1st Cir. 1989).

Even so, dismissal with prejudice is a severe sanction.

To ensure against arbitrariness, a reviewing court must balance the

trial court's authority to impose such a sanction against the

obvious policy considerations that favor disposition of cases on

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the merits. See Zavala Santiago v. Gonzalez Rivera, 553 F.2d 710,

712 (1st Cir. 1977); Richman v. Gen. Motors Corp., 437 F.2d 196,

199 (1st Cir. 1971). This is an "open-ended balancing test," HMG

Prop. Investors, 847 F.2d at 917 n.13, conducted with due respect

for the trial court's first-hand knowledge of the nuances of the

case and the (sometimes recondite) agendas of the parties.

In Enlace Mercantil Internacional, Inc. v. Senior

Industries, Inc., 848 F.2d 315, 317 (1st Cir. 1988), we said that

the sanction of dismissal for want of prosecution is appropriate

only when the plaintiff's misconduct has been "extreme." For this

purpose, however, extreme misconduct comes in many shapes and

forms, ranging from protracted foot-dragging to defiance of court

orders to ignoring warnings to other aggravating circumstances.

Cosme Nieves v. Deshler, 826 F.2d 1, 2 (1st Cir. 1987). A classic

form of aggravating circumstance is a wasteful expenditure of the

court's time. Enlace, 848 F.2d at 317.

In this instance, the district court dismissed the case

because Batiz, after being suitably forewarned – the court earlier

had issued a show-cause order that specifically mentioned the

possibility of dismissal – nevertheless flouted the court's direct

order to furnish a progress report. In the district court's view,

this stonewalling not only exhibited "a disregard for the court's

time and schedule" but also made manifest "a repeated unwillingness

to move this case forward." These reasons, if well-founded,

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describe conduct extreme enough to warrant dismissal. The

question, then, is whether the district court's description of

Batiz's behavior finds adequate support in the record. We think

that it does.

The district court's decree of December 15, 2000

"instructed [the parties] to inform the Court by February 28, 2001,

how they will proceed with this case." This was clear, direct, and

to the point: the order obligated both Hertz and Batiz to file

progress reports within the stipulated time frame. Hertz complied;

Batiz did not. That was a blatant violation of the court's order

– and one that undermined the court's studied effort to manage its

docket. See Tower Ventures, Inc. v. City of Westfield, ___ F.3d

___, ___ (1st Cir. 2002) [No. 02-1145, slip op. at 5-6] ("To manage

a crowded calendar efficiently and effectively, a trial court must

take an active role in case management. Scheduling orders are

essential tools in that process — and a party's disregard of such

orders robs them of their utility."). This conduct breached

Batiz's duty to the court, see Rosario-Diaz v. Gonzalez, 140 F.3d

312, 315 (1st Cir. 1998) (discussing a party's "unflagging duty to

comply with clearly communicated case-management orders"), and

wasted the court's time in the bargain.

In an attempt to confess and avoid, Batiz points to

Hertz's progress report, tells us that he agrees with Hertz's

assessment, and argues that it would have been superfluous to file

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his own report because such a statement would have covered the same

ground. That argument smacks of post-hoc rationalization, and the

district court, in denying reconsideration, flatly rejected it. In

all events, the argument goes wide of the mark. The district court

directed both parties to file progress reports and it was entitled

to know how each of them viewed the case. Batiz could have

complied with the order either by a submission that tracked Hertz's

report or by simply stating that he agreed with Hertz's summary.

What he could not do was to take it upon himself to ignore the

order and leave the district court guessing.

Batiz's other justification for noncompliance is that his

counsel was busy with a complicated jury trial. We consistently

have refused to accept such excuses, see, e.g., Tower Ventures, ___

F.3d at ___ n.7 [slip op. at 7 n.7]; Mendez v. Banco Popular de

P.R., 900 F.2d 4, 8 (1st Cir. 1990); Pinero Schroeder v. FNMA, 574

F.2d 1117, 1118 (1st Cir. 1978) (per curiam), and we see no basis

for applying a different standard here. The fact that an attorney

has other fish to fry is not an acceptable reason for disregarding

a court order.

In a last-ditch effort to salvage the case, Batiz asserts

that the district court violated its own local rules. Focusing on

D.P.R.R. 313, he argues that the rule limits a trial judge's

authority, under Rule 41(b), to dismiss a case with prejudice for

want of prosecution. To the extent that this argument is true, it

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does not help Batiz: the district court's action was fully

consistent with D.P.R.R. 313 as presently written. We explain

briefly.

Batiz relies on cases in which we vacated dismissals for

want of prosecution because they clashed with the District of

Puerto Rico's local rules. E.g., Jardines Bacata, Ltd. v. Diaz-

Marquez, 878 F.2d 1555 (1st Cir. 1989); Martinez Class v. Caribe

Hilton Hotel, 784 F.2d 12 (1st Cir. 1986). Each of those

decisions, however, was premised upon a finding that the order of

dismissal conflicted with a now-defunct provision of the local

rules. That provision limited dismissal for want of prosecution to

cases in which "no substantial proceedings of record have been

taken for a term of six (6) months as shown by the record docket."

D.P.R.R. 313.1(B) (repealed Apr. 29, 1997). Since substantial

proceedings had occurred within the proscribed six-month period, we

held that dismissal for want of prosecution was improper. See

Jardines Bacata, 878 F.2d at 1560; Martinez Class, 784 F.2d at 12.

The case at bar arises under a different regime. In its

amended form, applicable here, the comparable provision of D.P.R.R.

313.1(B) restricts the class of cases subject to dismissal for want

of prosecution to those in which "a certificate of readiness for

trial has not been filed within one (1) year after the filing of

the action." Batiz does not allege that this case falls within the

prophylaxis of that restriction.

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 Relatedly, Batiz complains about the fact that the

dismissal operates with prejudice, asseverating that this feature

violates D.P.R.R. 313.2. But that rule allows the court to direct

that the dismissal of a case will operate as an adjudication on the

merits. See D.P.R.R. 313.2 (stating that the dismissal of a case

"shall not operate as an adjudication of the merits, unless the

Court . . . directs otherwise") (emphasis supplied). The court

made such an express direction here.

We add a coda. Although Batiz's arguments are

unpersuasive, the court imposed a heavy-duty sanction. Were

Batiz's disregard of the court's order an isolated incident, this

sanction — dismissal with prejudice — would give us pause. Here,

however, the district court supportably viewed Batiz's failure to

file the court-ordered progress report as part of a pattern. On at

least two occasions, Batiz had neglected to respond to discovery

requests; he had not replied either to Hertz's motion for a

protective order or to Hertz's demands for document production; and

over a two-year span, he had made only a token effort at

discovery.3 The case languished to such an extent that the court

3
We note that Batiz, in responding to the show-cause order on
November 16, 2000, told the district court that he would "tailor"
a revised request for production of documents in an effort to quell
the objections raised in Hertz's motion for a protective order.
Despite this pledge, a revised request was not served until
September of 2001. This inexplicable ten-month gap aptly
illustrates why the district court (understandably, in our view)
grew impatient.

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was forced to issue a show-cause order in an effort to move it

along. That order, although ultimately withdrawn, placed Batiz on

notice that further procrastination in the prosecution of his

action would not be well-received. Under the circumstances, Batiz

spurned the order to file a progress report at his peril. See

Rosario-Diaz, 140 F.3d at 315.

We need go no further. Historically, appellate courts

have not lent a sympathetic ear to the importunings of those who

claim that a trial judge abused his or her discretion by dismissing

a case for want of prosecution. E.g., Damiani v. R.I. Hosp., 704

F.2d 12, 17 (1st Cir. 1983). This case is in that tradition. By

lollygagging throughout the proceedings, Batiz set the stage for

the denouement that was to follow. When he disregarded the order

to file a progress report, that was the straw that broke the

dromedary's back. Given that omission and what had occurred (or,

more precisely put, what had not occurred) over the two-year life

of this case, the trial court did not abuse its discretion by

dismissing this action for want of prosecution.4 Because that is

4
It is, of course, settled that a trial judge does not need to
exhaust milder sanctions before resorting to dismissal when a
noncompliant litigant has disregarded court orders and been
suitably forewarned. E.g., Tower Ventures, ___ F.3d at ___ [slip
op. at 5]; Top Entertainment Inc. v. Ortega, 285 F.3d 115, 119 (1st
Cir. 2002); Velazquez-Rivera v. Sea-Land Serv., Inc., 920 F.2d
1072, 1076 (1st Cir. 1990); Figueroa-Ruiz v. Alegria, 896 F.2d 645,
649 (1st Cir. 1990); HMG Prop. Investors, 847 F.2d at 918.

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so, the court, by definition, did not abuse its discretion in

refusing to alter or amend the judgment.

Affirmed.

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